Suzy's Zoo - Page 23




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          the UNICAP rules as an operation of law.10  We find that argument           
          unpersuasive.  The fact of the matter is that, up until and                 
          including the subject year, petitioner used a method of                     
          accounting that did not reflect the UNICAP rules, and our                   
          holdings herein mean that petitioner must recompute its income              
          for the subject year under a method of accounting that does take            
          into account those rules.  See also sec. 1.263A-1T(e)(11),                  
          Temporary Income Tax Regs., 52 Fed. Reg. 10052, 10083-10084 (Mar.           
          30, 1987) (“Taxpayers who are required to change their method of            
          accounting under this section and who fail to comply with the               
          requirements of this paragraph (e)(11) [regarding an automatic              


               10                                                                     
         Petitioner also notes that the Commissioner had previously                   
         examined some of its earlier taxable years that postdated the                
         effective date of the UNICAP rules and that the Commissioner had             
         never changed its method of accounting for those years to conform            
         to those rules.  Petitioner suggests that the Commissioner now is            
         estopped from making the sec. 481 adjustment for the subject                 
         year.  We find this suggestion unavailing.  The fact that the                
         Commissioner had the opportunity to, but did not, change an                  
         improper method of accounting in an earlier year does not mean               
         that he is estopped from making the change in the later year.                
         See Knight-Ridder Newspapers Inc. v. United States, 743 F.2d 781             
         (11th Cir. 1984).  The doctrine of equitable estoppel does not               
         bar the Commissioner from correcting a mistake of law, see                   
         Automobile Club v. Commissioner, 353 U.S. 180, 183 (1957); see               
         also Norfolk S. Corp. v. Commissioner, 104 T.C. 13, 61 (1995),               
         and the cases cited therein, affd. 140 F.3d 240 (4th Cir. 1998),             
         "even where a taxpayer may have relied to his detriment on the               
         Commissioner's mistake", Dixon v. United States, 381 U.S. 68,                
         72-73 (1965).  The Commissioner may correct mistakes of law                  
         because "'Whoever deals with the government does so with notice              
         that no agent can, by neglect or acquiescence, commit it to an               
         erroneous interpretation of the law."' Graff v. Commissioner, 74             
         T.C. 743, 762 (1980) (quoting Schafer v. Helvering, 83 F.2d 317,             
         320 (D.C. Cir. 1936)), affd. 673 F.2d 784 (5th Cir. 1982).                   





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